AMENDMENT NO. 7 TO
AMENDMENT NO. 7
TO
CREDIT AGREEMENT PROVIDING FOR A
SENIOR SECURED TERM LOAN
OF $38,500,000
dated August 26, 2014,
CENTRAL GULF LINES, INC.
as Borrower,
AND
The Banks and Financial Institutions listed on Schedule I thereto,
as Lenders,
AND
DVB BANK SE
as Mandated Lead Arranger, Facility Agent and as Security Trustee
AND
INTERNATIONAL SHIPHOLDING CORPORATION,
as Guarantor
Dated as of February 19, 2016
AMENDMENT NO. 7 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 7 TO CREDIT AGREEMENT (this “Amendment”) is dated as of February 19, 2016 , by and among (1) CENTRAL GULF LINES, INC., a corporation existing under the laws of the State of Delaware, as borrower (the “Borrower”), (2) INTERNATIONAL SHIPHOLDING CORPORATION, a corporation organized and existing under the laws of the State of Delaware, as guarantor (the “Guarantor”), (3) DVB Bank SE and the other banks and financial institutions listed on Schedule I to the Facility Agreement (as defined below), as lenders (together with any bank or financial institution which becomes a Lender pursuant to Section 12 of the Facility Agreement, as defined below, the “Lenders” and each a “Lender”), and (4) DVB BANK SE, (“DVB”), as facility agent (in such capacity including any successor thereto, the “Facility Agent”), as security trustee for the Lenders (in such capacity, the “Security Trustee” and, together with the Facility Agent, the “Agents”), and amends and is supplemental to the Senior Secured Term Loan Credit Agreement dated as of August 26, 2014, by and among Xxxxxxxx Steamship Corporation, as original borrower (“Xxxxxxxx Steamship”), the Guarantor, the Lenders and the Agents, as amended by an Amendment No. 1 dated as of October 28, 2014, by and among Xxxxxxxx Steamship, the Guarantor, the Lenders and the Agents, an Amendment No. 2 dated as of November 24, 2014, by and among Xxxxxxxx Steamship, the Guarantor, the Lenders and the Agents, an Omnibus Assignment and Assumption Agreement dated as of December 29, 2014, by and among Xxxxxxxx Steamship, as assignor, LCI Shipholdings, Inc. (“LCI”), as assignee, the Guarantor, the Lenders and the Agents, pursuant to which LCI became the borrower under said Senior Secured Term Loan Credit Agreement, an Amendment No. 3 dated as of March 30, 2015 entered into by and among LCI, the Guarantor, the Lenders and the Agents, an Amendment No. 4 dated as of April 20, 2015 entered into by and among LCI, the Guarantor, the Lenders and the Agents, an Omnibus Assignment and Assumption Agreement dated as of August 4, 2015, by and among LCI, as assignor, the Borrower, as assignee, the Guarantor, the Lenders and the Agents, pursuant to which the Borrower became the borrower under said Senior Secured Term Loan Credit Agreement (the “CGL Assignment”), a letter agreement dated as of September 15, 2015, a letter agreement dated as of November 4, 2015, an Amendment No. 5 dated as of December 3, 2015 and an Amendment No. 6 dated January 8, 2016 (collectively, the “Original Agreement”).
W I T N E S S E T H T H A T:
WHEREAS, the Security Parties and the Creditors have agreed to amend the Original Agreement pursuant to the terms set forth herein (as so amended, the “Facility Agreement”);
NOW, THEREFORE, in consideration of the premises and such other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, it is hereby agreed as follows:
|
1. Definitions. Unless otherwise defined herein, words and expressions defined in the Original Agreement have the same meanings when used herein. |
|
2. Representations and Warranties. Each of the Security Parties hereby reaffirms, as of the date hereof, each and every representation and warranty made thereby in the Original Agreement and the Note (updated mutatis mutandis) and that the copies of its resolutions, Certificate of Incorporation and By-laws or similar constituent documents thereof attached to its Officer’s Certificate delivered in connection with, inter alia, its entering into the Original Agreement have not been amended or rescinded and remain in full force and effect as of the date hereof. |
|
3. No Defaults. Each of the Security Parties hereby represents and warrants that as of the date hereof there exists no Event of Default or any condition which has not been disclosed to the |
Facility Agent in writing that, with the giving of notice or passage of time, or both, would constitute an Event of Default.
|
4. Performance of Covenants. Each of the Security Parties hereby reaffirms that it has duly performed and observed the covenants and undertakings set forth in the Original Agreement, the Note and the Security Documents on its part to be performed, and covenants and undertakes to continue duly to perform and observe such covenants and undertakings, so long as the Facility Agreement, as may be amended or supplemented from time to time, shall remain in effect. |
|
5. Amendments to the Original Agreement. Subject to the terms and conditions of this Amendment, the definition of “Consolidated EBITDA” is hereby amended and restated to read as follows: |
“Consolidated EBITDA” shall mean, for any period, with respect to the Guarantor and its Subsidiaries, the sum of (without duplication) (a) Consolidated Net Income; (b) all Consolidated Interest Expense of the Guarantor and its Subsidiaries; (c) income taxes of the Guarantor and its Subsidiaries; (d) depreciation and amortization of the Guarantor and its Subsidiaries determined on a consolidated basis in accordance with GAAP for such period; and (e) any non-cash items reducing Consolidated Net Income for such period, minus any non-cash items increasing Consolidated Net Income for such period; provided that if any Subsidiary is not wholly-owned by the Guarantor, Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in accordance with GAAP) by an amount equal to (i) the amount of Consolidated Net Income attributable to such Subsidiary multiplied by (ii) the percentage ownership interest in the income of such Subsidiary not owned by the Guarantor on the last day of such period; provided, however, that if any acquisition or disposition of assets permitted to be made under this Agreement (other than non-material acquisitions or dispositions in the ordinary course of business, each with a total value of less than $2,000,000) occurs during such period of determination, Consolidated EBITDA for such period shall be calculated on a pro forma basis to give effect to such acquisition or disposition as if each such acquisition or disposition has been consummated on the first day of such period; provided, further, that such Consolidated EBITDA based on any such acquisition shall only be based on contracted cash flow.
|
6. Conditions Precedent to the Effectiveness of this Amendment. The effectiveness of this Amendment shall be expressly subject to the following conditions precedent: |
|
(a) |
This Amendment. The Borrower and the Guarantor shall have duly executed and delivered this Amendment to the Facility Agent. |
|
(b) |
Interest, Fees and Expenses Paid. The Facility Agent shall have received payment in full of all interest, fees and expenses due under or in connection to the Facility Agreement. |
|
(c) |
Other Lender Waivers. The Borrower shall obtain (and provide copies to the Facility Agent) parallel written consents or amendments (to the extent required by the relevant loan documentation) from any other lender or creditor to the Guarantor or any of its subsidiaries in form and substance reasonably satisfactory to the Facility Agent. |
|
7. Other Documents. By the execution and delivery of this Amendment, the Security Parties and the Lenders hereby consent and agree that all references in the Note and the Transaction Documents to the Original Agreement shall be deemed to refer to the Original Agreement as amended hereby. By the execution and delivery of this Amendment, each of the Security Parties hereby consents and agrees that each of the Note and any other documents that have been executed in connection with the Original Agreement and each of the Security Parties’ obligations under the Original Agreement shall remain in full force and effect notwithstanding the amendments contemplated hereby. |
|
8. No Other Amendment or Waiver. All other terms and conditions of the Original Agreement shall remain in full force and effect, and no other amendment to or waiver of any provision of any such document is hereby granted. |
|
9. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws thereof other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York. |
|
10. Counterparts. This Amendment may be executed in as many counterparts as may be deemed necessary or convenient, and by the different parties hereto on separate counterparts each of which, when so executed, shall be deemed to be an original but all such counterparts shall constitute but one and the same agreement. |
|
11. Headings; Amendment. In this Amendment, section headings are inserted for convenience of reference only and shall be ignored in the interpretation of this Amendment. This Amendment cannot be amended other than by written agreement signed by the parties hereto. |
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment by its duly authorized representative on the day and year first above written.
CENTRAL GULF LINES, INC.
As Borrower
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President – Treasurer
INTERNATIONAL SHIPHOLDING CORPORATION
As Guarantor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President – Treasurer
DVB BANK SE
As Facility Agent, Security Trustee and Lender
By: /s/ Xxxx Savvatianou
Name: Xxxx Savvatianou
Title: Vice President – Legal Counsel
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President – Legal Counsel
